MT. VERNON - A mother was not unreasonable for supervising visits of her two children with their grandparents, an appeals court has ruled.
The three justice Fifth District Appellate Court panel on Nov. 8 also ordered sanctions against the petitioner when it found a "reasonable, prudent attorney" would not have pursued an appeal against the Madison County Circuit Court decision affirmed by the appeals court.
In a judgment authored by Justice Thomas Welch, with Justices David Overstreet and James Moore concurring, the panel found that the petitioner, the grandfather of the two girls, "presented no direct evidence that any denial of visitation harmed" the minor childrens' physical, mental, or emotional health.
"We conclude that the trial court’s finding that the respondent was not unreasonable in denying the petitioner unsupervised visitation with the minor children following the death of their father was not against the manifest weight of the evidence," Welch wrote.
Petitioner Robert H. is the grandfather of 10-year-old Audrey and her five-year-old sister Annalynn H. Their father Sean died in 2015 while the dissolution of his marriage to the mother, Andrea H. was still pending.
On March 4, 2016, the petitioner and his wife, Madonna H., filed a petition under what is known as the grandparent visitation statute. They claimed the mother "had unreasonably denied them visitation with the minor children" and that it was in their best interest for the grandparents to be granted such visitation.
The circuit court heard that the petitioner saw his grandchildren every Wednesday after his son separated but before he died. Prior to the separation, the grandparents saw the children much less often, during family gatherings and holidays.
Since his son's death, all meetings with his grandchildren were supervised, according to the appeals court judgment.
From December 2016 to June 2018, the "children had seen their grandfather one time when they all went to lunch in the summer of 2017." The respondent, Andrea H. gave evidence that she had not heard from petitioner since the lunch.
She also revealed that one of her children suffered from allergies and asthma while the other sometimes passed out. While wanting her children to have a relationship with their grandparents, she was "concerned about his health and his ability to take care" of the children if they experienced an attack or fainting spell.
In the two months following her estranged husband's death, she did take the children to their grandparents' home every two weeks but stopped when a counselor advised the older child was being affected by "pictures and memories and things" of her father that were in the house.
Under the grandparent visitation statute, a petition can be filed if there was "a unreasonable denial" that has "caused the child undue mental, physical, or emotional harm," along with related issues.
After carefully reviewing the record, the appeals panel found in favor of the mother. It also agreed to sanctions because a "prudent attorney acting in good faith would not have brought" the appeal.
The court remanded the case back to the trial court, where Associate Judge Martin Mengarelli has presided, to determine those sanctions, including reasonable costs relating to the appeal.